2017 (9) TMI 2005 - HC - Indian Laws

Court upholds suspension exceeding 90 days without charge sheet, emphasizes need for valid reasons.

The court set aside the Central Administrative Tribunal's order quashing the respondent's suspension that exceeded 90 days without issuing a charge sheet. ... Validity of continuing suspension which had exceeded 90 days - charge sheet not issued - HELD THAT:- In Ajay Kumar Choudhary [2015 (6) TMI 592 - SUPREME COURT], the appellant had assailed his suspension even before issuance of the charge sheet. He had been suspended with effect from 30.09.2011 and the Supreme Court observed that the same “has been extended and continued ever since” - even though the charge sheet had not been served on the appellant Ajay Kumar Choudhary when he initially assailed his suspension, or even till the hearing of the appeal took place before the Supreme Court on 09.09.2014 (it was only between 09.09.2014 and the date of decision on 16.02.2015 that the charge sheet appears to have been served), the Supreme Court held that since the charge sheet had been served on the appellant, therefore, the directions issued by it would not be relevant to his case. Despite the fact that the appellant Ajay Kumar Choudhary had remained under suspension right from 30.09.2011, the Supreme Court did not set aside the order of suspension since, in the meantime, Ajay Kumar Choudhary had been served with a charge sheet sometime after 09.09.2014, i.e. nearly three years after his suspension. There can be no quarrel with the proposition that a government servant who is suspended in contemplation of a disciplinary proceedings or criminal proceedings under Rule 10 of the CCS (CCA) Rules, should not be kept under suspension indefinitely or unnecessarily. It is for this reason that a review of the on-going suspension is required to be undertaken by the government at regular intervals under Rule 10(6) of the CCS (CCA) Rules - It may not always be possible for the government to serve the charge sheet on the officer concerned within a period of 90 days, or even the extended period, for myriad justifiable reasons. At the same time, there may be cases where the conduct of the government servant may be such, that it may be undesirable to recall the suspension and put him in position once again, even after sanitising the environment so that he may not interfere in the proposed inquiry. On a reading of Ajay Kumar Choudhary, the Supreme Court has not denuded the Government of its authority to continue/ extend the suspension of the government servant – before, or after the service of the charge sheet – if there is sufficient justification for it. The Supreme Court has, while observing that the suspension should not be extended beyond three months – if within this period the memorandum of charges/ charge-sheet is not served on the delinquent officer, has stopped short of observing that if the charge memo/ charge-sheet is not issued within three months of suspension, the suspension of the government servant shall automatically lapse, without any further order being passed by the Government. No such consequence – of the automatic lapsing of suspension at the expiry of three months if the charge memo/ charge-sheet is not issued during that period, has been prescribed. From a reading of the decision in Ajay Kumar Choudhary and Rule 10 of the CCS (CCA) Rules, it emerges that the government is obliged to record its reasons for extension of the suspension which, if assailed, would be open to judicial scrutiny – not as in an appeal, but on grounds available in law for judicial review of administrative action. There is no force in the submission of the respondent that the suspension of the respondent automatically lapsed since the charge sheet was not issued within the initial period of 90 days. Pertinently, the respondents suspension was reviewed and extended by the government within the initial period of 90 days on 27.09.2016. Thus, the suspension of the respondent did not lapse under sub rule (7) of Rule 10 CCS (CCA) Rules. In the facts of the present case, the impugned order was certainly not called for, revoking the suspension of the respondent. When the O.A. was preferred, the charge sheet had already been issued to the respondent on 01.03.2017 - The jurisdiction of the tribunal is confined to examining the administrative action of the government on the well established objective principles of judicial review and, where it considers necessary, to require the government to perform its statutory obligation to take a decision. In view of the aforesaid, the impugned order cannot be sustained and is, accordingly, set aside. Petition allowed. Issues Involved:1. Legality of continued suspension beyond 90 days without issuing a charge sheet.2. Compliance with Supreme Court's decision in Ajay Kumar Choudhary v. Union of India.3. Interpretation of Rule 10(6) of the CCS (CCA) Rules, 1965.4. Tribunal's authority to quash suspension orders.5. Payment of subsistence allowance during suspension.Detailed Analysis:1. Legality of Continued Suspension Beyond 90 Days:The petitioner challenged the order of the Central Administrative Tribunal (CAT) which quashed the respondent's suspension that exceeded 90 days without issuing a charge sheet. The CAT relied on the Supreme Court's decision in Ajay Kumar Choudhary v. Union of India, which directed that suspension should not extend beyond three months if the charge sheet is not served within that period. The Tribunal ordered the respondent's reinstatement and full salary entitlement from 10.10.2016, while the treatment of the initial 90 days suspension period was to be determined under FR 54B.2. Compliance with Supreme Court's Decision in Ajay Kumar Choudhary:The respondent claimed that his continued suspension was illegal as per the Supreme Court's ruling in Ajay Kumar Choudhary, which mandates issuing a charge sheet within 90 days of suspension. The CAT upheld this view and quashed the suspension. The petitioner contended that the Tribunal misinterpreted the Supreme Court's decision, arguing that the suspension could continue if justified by the Review Committee under Rule 10(6) of the CCS (CCA) Rules, even if the charge sheet was issued later.3. Interpretation of Rule 10(6) of the CCS (CCA) Rules, 1965:The petitioner argued that under Rule 10(6), a suspended employee does not acquire a statutory right to seek revocation of suspension if the charge sheet is not issued within 90 days. The petitioner maintained that the suspension was extended by the Review Committee in accordance with the rules, and the Tribunal should have only directed the petitioner to pass a reasoned order justifying the continued suspension rather than quashing it outright.4. Tribunal's Authority to Quash Suspension Orders:The court observed that the Tribunal overstepped its jurisdiction by quashing the suspension instead of directing the administration to justify the extension with a reasoned order. The Tribunal's role is to review administrative action based on judicial review principles and ensure statutory obligations are met, not to make administrative decisions.5. Payment of Subsistence Allowance During Suspension:The court directed the petitioner to pay the subsistence allowance to the respondent as per the rules, along with arrears, within four weeks. The payment of subsistence allowance was to commence immediately.Conclusion:The court set aside the Tribunal's order quashing the suspension, emphasizing that the suspension could be justified if reasons were recorded and communicated. The court highlighted that the Supreme Court's decision in Ajay Kumar Choudhary did not automatically nullify suspensions extended beyond 90 days without a charge sheet, provided there were justifiable reasons for the extension. The respondent's suspension could continue if extended in conformity with Rule 10(6) and the reasons were communicated to him, allowing him to challenge the extension on legal grounds.